Labourers' International Union of North America, Ontario Provincial District Council v. Ellis-Don Limited, 1991 CanLII 6195

[1991] OLRB Rep. September 1036

1321-89-JD Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 837, Complainant v. Ellis-Don Limited and Greenspoon Bros. Limited and The Metropolitan Toronto Demolition Contractors Inc. and International Union of Operating Engineers, Local 793, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members J. Trim and R. R. Montague.

DECISION OF THE BOARD; September 3, 1991

1This is a complaint filed under section 91 of the Labour Relations Act, in which the complainants request that the Board issue a direction with respect to the assignment of certain work.

2This decision deals with the preliminary objection raised by the respondent Operating Engineers, Local 793, that the Board has no jurisdiction to entertain the complaint, in that Local 793 was not requiring the employer to assign particular work to it. It is not disputed that in order for the Board to have jurisdiction, we must be satisfied that Local 793 "... was or is requiring an employer ... to assign particular work to persons in a particular trade union, or in a particular trade, craft or class rather than to persons in another trade union or another trade, craft or class..."

3Ellis-Don Limited is the general contractor for a construction project involving the demolition of an Eaton's Department store in Hamilton, Ontario, and the construction of a new building on site. Ellis-Don subcontracted to Greenspoon Bros. Limited ("Greenspoon") the job of taking down the existing Eaton's building. Greenspoon used members of the Labourers Union to operate certain heavy machinery as part of its demolition work. The Labourers have a collective agreement covering wrecking or demolition with Greenspoon, and have for many years performed such work for Greenspoon. The Operating Engineers do not have a collective agreement with Greenspoon. The Operating Engineers have a collective agreement with Ellis-Don, which requires Ellis-Don to employ only subcontractors which are in contractual relations with Local 793.

4After the demolition of the building commenced, a representative of the Operating Engineers attended at the demolition site and observed that the heavy machinery was not being operated by members of Local 793. The representative told the site supervisor that in his view the heavy machinery ought to be operated by Operating Engineers. Shortly thereafter, Local 793 filed a grievance against Ellis-Don, asking that Ellis-Don immediately comply with and apply the terms of its collective agreement with Local 793, that it pay damages to Local 793 in respect of its violation of the collective agreement, and "that the company only employ subcontractors who are in contractual relations with Local 793 to perform work as set out in the classifications of the agreement".

5In response, a representative of Ellis-Don met with representatives of Local 793 to discuss who ought to operate the heavy machinery. Ellis-Don asked for another meeting, with someone from Greenspoon attending. The Operating Engineers agreed, while maintaining that the matter did not concern Greenspoon, as only the grievance against Ellis-Don was at issue. Ellis-Don then advised the person in charge of labour relations for Greenspoon, Ira Greenspoon, that Local 793 was questioning Ellis-Don about the operation of the machinery. Ellis-Don also provided a copy of Local 793's grievance to Greenspoon.

6Around June 15, 1990, a meeting was held, attended by representatives of Ellis-Don, Greenspoon, the Labourers, and the Operating Engineers. The Operating Engineers asserted that they had jurisdiction over the operation of the equipment in question. They indicated that the basis of their grievance against Ellis-Don was that Ellis-Don was not complying with the sub-contracting clause. One of the Operating Engineers representatives looked at the Labourers Collective Agreement with Greenspoon. He was of the opinion that that collective agreement did not cover the work in question. The Operating Engineers advised Ira Greenspoon that they wanted Greenspoon to hire Operating Engineers to run the equipment. Ellis-Don responded that it felt that this was really a jurisdictional dispute between the two trades and ought to be resolved in that fashion. The Labourers also indicated that this was really a jurisdictional dispute, and not a grievance.

7After the formal meeting broke up, one of the representatives of the Operating Engineers, Jim Anderson, spoke privately with Ira Greenspoon. During that conversation, Mr. Anderson advised Ira Greenspoon that there was in his view an easy way to solve the problem. If Greenspoon was prepared to sign a collective agreement with the Operating Engineers and have Operating Engineers run the heavy equipment, as the Operating Engineers felt Greenspoon had done in the past, then the matter could be resolved.

8In testimony at the hearing by representatives of the Operating Engineers it was apparent that the Operating Engineers were seeking the work in question, and not only damages for breach of the subcontracting clause in their collective agreement with Ellis-Don. In the Operating Engineers' view, the work in dispute fell within their jurisdiction, they wanted their members to perform the work, and they wanted to get the Labourers off the job. For these reasons, both to get the Labourers off the job and to get their men on the job, they wanted Greenspoon to sign a collective agreement with them. The goal of filing the grievance was to obtain the work in question. It was quite probable that if Greenspoon signed a collective agreement with the Operating Engineers, the grievance would be withdrawn.

9The grievance was referred to the Board pursuant to section 124 of the Act on July 20, 1989 (Board File No. 1031-89-G). At the hearing before the Board, it was argued that the section 124 application ought to be deferred pending the filing of a jurisdictional complaint. In a decision dated August 3, 1989, a panel (differently constituted) so deferred the hearing of the section 124 application. On August 24, 1989, the Labourers filed the instant jurisdictional complaint.

10In these circumstances, have the Operating Engineers required Greenspoon to assign the work in question to them and not to the Labourers, within the meaning of section 91? Put differently, does the Board have the jurisdiction to entertain the complaint, filed pursuant to the Board's earlier decision of August 3, 1989, deferring consideration of the section 124 application.

11The issue is whether the Board has jurisdiction under section 91 of the Act, not how the Board exercises its discretion under that section. The decision not to proceed with the section 124 application, and to defer it pending the resolution of a jurisdictional complaint, has already been made. Given that decision and the instant complaint, the only issue here is whether the Board has the jurisdiction under section 91, not whether the section 124 should have been deferred. In order to have jurisdiction, the Board must be satisfied that (i) a demand for the work has been made, (ii) by the union, and (iii) the demand has been made of the employer (here, the subcontractor Greenspoon). The Operating Engineers request in their grievance that Ellis-Don "only employ subcontractors who are in contractual relations with Local 793 to perform work." There is no question that this grievance constitutes a demand for the work, by the union. Has the demand been made "of the employer"?

12This grievance is similar to one considered by the Board, also involving the Operating Engineers and the Labourers' in PCL Constructors Eastern Inc. [1991] OLRB Rep. Mar. 354. In that case, the Board wrote, in part, as follows:

Section 91(1) of the Labour Relations Act provides that:

91.-(1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.

As the Board observed in Schindler Elevator Corporation, supra, the Board has, in the interests of labour relations stability, adopted a broad approach to jurisdictional disputes such that, once satisfied that it has the jurisdiction to do so, the Board will generally hear a complaint concerning work assignment on its merits as such. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dispute. When a complaint under section 91 is filed, or is contemplated, with respect to the same assignment of work which is the subject of the grievance which has been referred to it, the Board is faced with deciding how the dispute is best resolved. The purpose of section 124 is to provide an expeditious mechanism for resolving grievances in an industry in which the nature of the work and the structure of labour relations often renders ineffectual the kind of arbitration provisions typically found in collective agreements. On the other hand, section 91 is specifically designed to be the primary means by which jurisdictional disputes are to be resolved. Accordingly, although there may be circumstances in which it is not appropriate to do so, the Board will often defer consideration of a grievance until a (bona fide) jurisdictional dispute relating to the same assignment work has been resolved. When faced with that kind of situation, the Board has generally concluded that a grievance can constitute a demand for the work in question (Eaman Riggs Limited, [1978] OLRB Rep. March 228, Napev Construction Ltd. [1979] OLRB Rep. Sept. 886, Pre-Con Company (A Division of St. Mary's Cement Limited), [1981] OLRB Rep. July 947, Ontario Hydro, [1982] OLRB Rep. March 428). A jurisdictional dispute complaint need not be dispositive of a grievance before the Board will defer consideration of the latter. Further, as the Board observed in its January 11, 1991 decision in Vic West Steel Limited, supra:

A recurrent complaint from the labour relations community in recent years has been that jurisdictional disputes take too long and are too expensive to litigate before the Board. The community has complained that this situation has developed because the Board has failed to be sufficiently active in directing the proceedings. The Board has been aware of and [is] sensitive to these concerns. It too has experienced some frustration in that respect. Jurisdictional disputes have come to consume an ever increasing and disproportionate amount of the Board's resources. It has become increasingly apparent that the costs of jurisdictional dispute proceedings, both to the Board and to the parties, often far exceed the value of any benefit derived from them. That situation is rapidly going from bad to worse.
In this case, the grievance referred to the Board alleges that the respondent has engaged non-union personnel and non-union sub-contractor [sic] to perform work covered by the agreement and requests that the respondent 'immediately remove the non-union personnel and equipment, comply with and apply all terms and conditions of the Collective Agreement, monetary and non-monetary, and pay to the union in trust all wages and benefits owing as a result of the [respondent's] violation of the collective agreement". Counsel for the applicant conceded that the work which is the subject of the grievance (namely, the operation of shovels, rubber-tired backhoes and skid steer loaders in the demolition of a commercial structure), was performed by members of the Labourers (it says by members of Labourers International Union of North America Local 506) and that the object of the grievance was to obtain the work for its own members.
The Board's decisions in Schindler Elevator Corporation, supra, and Vic West Steel, supra, indicate that the Board is concerned about the direction that the jurisdictional dispute process before it has taken. We agree with the comments made in those decisions in that respect. It should be evident that the Board intends to give careful scrutiny to request that a proceeding be deferred or adjourned pending the disposition of a jurisdictional dispute. A party making such a request must satisfy the Board both that the matters in issue in a proceeding do raise a jurisdictional dispute and that it is appropriate for them to be determined under section 91 of the Act using the Board's jurisdictional dispute procedure before a section t24 referral, for example, is allowed to proceed. This does not mean that it will be the Board's general practice to either defer or not to defer to the jurisdictional dispute process. Each case merits individual consideration in that respect.
In Vic West Steel, supra, what led the Board to proceed with the section 124 referral before the jurisdictional dispute complaint which had been filed was an assertion that the trade union which had delivered the grievance and referred it to the Board, and which grievance was accepted by all concerned to constitute a demand for the work in question, did not hold the bargaining rights upon which the grievance could be based. If, as the respondent employer asserted in that case, the applicant trade union held no relevant bargaining rights, its grievance would be dismissed, and, there being no other demand for the work in question, there would be no jurisdictional dispute within the meaning of section 91 of the Act. The Board went on to note that:
Of course, if its grievance fails, Local 1256 could itself file a complaint under section 91 which, if it proceeded, would raise the same work assignment dispute as the present complaint. However, a very significant difference would be that the issue of Local 1256's bargaining rights would have been determined as between the parties. It is true that the existence of bargaining rights is but one factor which the Board considers in determining jurisdictional disputes. However, a review of the Board's jurisprudence makes it readily apparent that it is a very significant factor where one of the trade unions involved holds relevant bargaining rights and the other does not. Consequently, a determination of the bargaining rights question is very likely to put the jurisdictional dispute into different perspective, whichever way it is determined, but particularly if Local 1256 is found to not hold any relevant bargaining rights. Consequently, resolving this issue before proceeding with a jurisdictional dispute may well reduce the costs of any jurisdictional dispute proceeding both to the Board (and therefore the taxpayer) and the parties.
Similarly, the Schindler Elevator Corporation, supra, decision must be read in the context of the circumstances set out therein. It is evident that the Board in that case was concerned about the conduct of the grieving trade union and whether there was any prima facie merit to the grievance in light of that conduct.
Consequently, while we agree with the decisions in Schindler Elevator Corporation, supra, and Vic West Steel, supra, we were not persuaded that it is appropriate to proceed with this application without first providing an opportunity to file a jurisdictional dispute complaint.
In this case, no one suggested that the applicant does not bold the bargaining rights upon which its grievance is based. Nor was there anything before the Board which raised the kinds of concerns raised in Schindler Elevator Corporation, supra. Further, the grievance herein is a prima facie demand for work which it was assigned by the respondent to and performed by members of the Labourers. It appeared to us that the nature of the issues raised by the grievance and the various interests involved are such that the issues raised by the grievance raise a jurisdictional dispute and are best dealt with under section 91 of the Act through the Board's jurisdictional dispute procedure.

13Those comments for the most part are equally applicable to the case before us. The Operating Engineers want their members to be operating the heavy equipment, and they want the Labourers removed from the operation of that equipment. The goal of the grievance is to obtain the work in question. The grievance was passed on by Ellis-Don to Greenspoon. The reason for passing on that grievance was to convey to Greenspoon the Operating Engineers' demand for the work, and to invite Greenspoon's response. We need not decide, however, whether the nature of the grievance and its passing on to Greenspoon were alone sufficient to bring this matter within the parameters of section 91 of the Act, given the circumstances.

14Subsequent to the grievance being passed on to Greenspoon, all the involved parties met to discuss the grievance and the concerns of the Operating Engineers. The Operating Engineers representatives stated that they wanted Greenspoon to use their members to operate the heavy machinery. This was an explicit demand made directly to Greenspoon that the work be assigned to Operating Engineers. To support this demand, the Operating Engineers representative looked through the Labourers collective agreement, asserting that it did not cover the work in question. The Operating Engineers claimed that they had jurisdiction over the operation of the equipment. The statements of the representatives of the Operating Engineers at this meeting were demands of the employer that it assign the work to them, and not to the Labourers. The events of this meeting bring this matter within the purview of section 91 of the Act.

15The private conversation after the meeting between Jim Anderson and Ira Greenspoon also constituted a demand of the employer for the work in dispute. Jim Anderson told Ira Greenspoon that the grievance could disappear and the matter be resolved if Greenspoon signed a collective agreement with the Operating Engineers. Mr. Anderson was, in effect, telling Greenspoon that if the Operating Engineers were used and the Labourers removed the matter would be resolved. This was a demand that the Operating Engineers be given the work.

16Amongst other cases, the Operating Engineers relied upon the decision of the Board in Day Signs Limited, [1976] OLRB Rep. May 217. In that decision, the facts of which are somewhat similar to those before us, the Board reached the opposite conclusion, holding that it did not have jurisdiction under what is now section 91 of the Act. In reaching that conclusion, the Board noted that it did not have before it evidence that established that the complainant unequivocally desired or was requesting the work in dispute. Because of that lack of unequivocal interest or evidence, the Board concluded that there was not a demand of the employer for the work.

17With respect, we do not agree that it is necessary for the Board to conclude that the demand for the work is unequivocal in nature. Rather, the Board must decide, having regard to all the evidence before it, and taking into account the usual factors such as the credibility of the witnesses, the logical inferences in the circumstances, and so on, whether or not the union has made a demand of the employer for the work in dispute. This may be a difficult factual determination in a given case. But it does not require evidence establishing a single unequivocal act indicating such a demand. It requires only that, at the end of the hearing, the Board is able to conclude that such a demand has been made. The Board must try to determine what has really occurred, and try to base its decisions on the reality of events. If a demand could only be found if it were unequivocal, parties could cloak, through the words they used, the true nature of the dispute. The Board ought not to be lulled by such "smoke and mirrors".

18In any event, the circumstances do demonstrate an unequivocal demand of Greenspoon for the work in question.

19For these reasons, the Board is satisfied that it has jurisdiction to consider this complaint under section 91 of the Act. The matter will be rescheduled before the prehearing panel for continuation of the prehearing conference.